Protecting your brands and enforcing when necessary needn’t be expensive nor taxing. A brief legal opinion can be inexpensive and pay dividends down the line, easing the stress of competing in this now crowded marketplace, argues Cameron Malone-Brown, a chartered Trade Mark Attorney at Potter Clarkson LLP.
Pre-Covid, the UK craft beer market was going from strength to strength. With demand increasing across all channels, it was something of a boom time for the sector. Since then, brewers have had to be quick to react to a completely different sales environment – and one that is subject to further change as lockdown eases.
Right now, in a bid to survive, brewers are having to focus their efforts on ‘off premise’ sales, which has required significant agility to secure channels to market, either via effective ecommerce routes or by securing valuable shelf space in retail outlets.
Before the products hit the shelves (or the consumer’s doorstep), they will have already overcome multiple operational difficulties, such as reconfiguring packaging and sourcing effective means of delivery.
With the industry now exclusively focussed on a narrower sales environment, it is more important than ever to have a brand that stands out in the crowd.
Many breweries get this perfectly right, with products that can be picked from a line-up at 20 yards, so distinctive are the trade marks and branding.
Breweries have been wise to the need to develop eye-catching brands for some time. From 2009 to 2019, the number of trade mark applications filed seeking protection in the UK for “beer” (in class 32) increased by around 530%. This huge leap is indicative of the growing market and increased importance of ring-fencing intellectual property rights.
One result of this surge, however, is that any new brand entering the market, even under the supervision of an experienced brewery or marketing team, stands a greater risk than ever of infringing or being infringed by a third party.
Even BrewDog, which rode the craft beer wave as well as any UK brewery, is not immune, having been challenged over its BREWDOG ELVIS JUICE.
Right now, with such intense competition to win the over the craft beer consumer, the risk of challenge and potential need for enforcement is greater than ever. Thankfully, there are cost-effective steps which may be taken to manage risks and ensure that branding may be rolled out without hindrance.
Four ways to protect your beer brand
Look before you leap…
It is difficult not to immediately commit emotionally to a new brand idea, especially the good ones. After all, what is craft beer if not an endeavour of passion? Taking a moment to check the risk position on the trade mark register and in the market can mean the life or death of the brand, and result in enormous cost savings down the road.
Keep calm if you receive a cease and desist letter
A letter of this kind will likely detail the other party’s best-case scenario, which is unlikely to be your only option of settlement. Legal advice is advisable but the first step is to consider a) how seriously you would take the matter if the roles were reversed, and b) what a reasonable resolution could look like to both sides. Bear in mind, however, that the risk of injunction is higher than in some other industries, so serious threats do need to be addressed.
Protecting your brand is about being active, not passive
Registering trade marks provides you a reliable basis to enforce your brand, but that is just the beginning. Enforcing your rights requires monitoring and, where necessary, action. Trade mark watching is a service whereby you are notified of parties filing trade mark applications for marks identical and similar to yours. Without this information, a similar trade mark could reach registration and potentially shelves because you weren’t in a position to object. A combination of a registered trade mark and watch is a powerful tool.
Be business-like and efficient if conflicts arise
Don’t let the grass grow if you find yourself embroiled in a dispute – if it reaches court, a judge will take a dim view of simply burying your head in the sand. Many disputes are resolved through discussions between breweries, as ought to be the case. That said, your brands deserve more than gentleman’s agreements, and putting pen to paper may alleviate further conflicts down the line.
Protecting your brands and enforcing when necessary needn’t be expensive nor taxing. A brief legal opinion can be inexpensive and pay dividends down the line, easing the stress of competing in this now crowded marketplace.
Getting it right straight off the bat will enable further focus on where we can all agree it ought to be – great beers.
Cameron is a chartered Trade Mark Attorney with a particular specialism in the craft beer sector, as well as an unhealthy and expensive fascination with barrel aged stouts. He works for Potter Clarkson LLP.
